Lake Superior Ship Canal &c. v. Cunningham, 155 U.S. 354 (1894)

U.S. Supreme Court

Lake Superior Ship Canal &c. v. Cunningham, 155 U.S. 354 (1894)

Lake Superior Ship Canal, Railway

& Iron Company v. Cunningham

No. 49

Argued November 2, 5, 1894

Decided December 10, 1894

155 U.S. 354

Syllabus

The grant of public lands to Michigan in the Act of June 3, 1856, c. 44, 11 Stat. 21, to aid in the construction of "railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the two last named places to the Wisconsin state line" was a grant in praesenti, which upon the filing of the map of definite location, November 30, 1857,

operated to withdraw the lands from public domain open to settlement by individuals, and the provision in the act for forfeiture of the grant if the road should not be completed within ten years was a condition subsequent, which could only be enforced by the United States.

That act contemplated separate railroads from Ontonagon to the state line and from Marquette to the state line, and was so regarded and treated by the State of Michigan.

Prior to the Act of March 2, 1889, c. 414, 25 Stat. 1008, no legislative or judicial proceeding was taken by the United States looking to a forfeiture of the Ontonagon grant; no act or resolution was passed by the Legislature of Michigan retransferring it to the United States, and the conveyance executed by the Governor of Michigan, August 14, 1870, assuming to formally release it to the United States, was beyond the scope of his powers and void.

As general terms in a subsequent congressional grant are always held not to include lands embraced within the terms of a prior grant, and as by the filing of the map of definite location of the railroad, and the certification of the lands to the state, the lands granted by the Act of June 3, 1856, had become identified and separated from the public domain before the passage of the Act of March 3, 1865, c. 202, 13 Stat. 519, granting lands to Michigan to aid in the construction of a ship canal, the state acquired no title to such lands through the latter act, and whether they were or were not returned to the United States was not a question of fact, but one of law, depending upon the construction to be given to the resolution of the Legislature of Michigan of February 21, 1867.

At the time of the passage of the Act of March 2, 1889, c. 414, 25 Stat. 1008, forfeiting to the United States the title to the lands granted to Michigan by the Act of June 3, 1856, neither the plaintiff nor the defendant had any title to the tract in controversy in this action, but, like other lands within the Ontonagon grant, it belonged to the State of Michigan, subject to forfeiture by the United States, and, construing that act, it is

Held:

(1) That § 1 grants nothing to and withdraws nothing from the parties.

(2) That the provision in § 2 as to the rights of the Portage Lake Canal Company and the Ontonagon and Brule River Railroad Company means simply that neither forfeiture nor confirmation nor any other provision in the act shall be construed as a final settlement of all the claims of those companies or their grantees.

(3) That the provision in § 2 as to prejudicing any right of forfeiture or recovery of the United States should not be construed as denying the confirmation granted by § 3.

(4) That the provision in § 2 touching the rights of persons claiming adversely to those companies or their assigns under the laws of the United States means that the confirmation to them shall not be taken as an attempt to invalidate any legal or equitable rights as against such companies.

(5) That the term "public land laws" in § 3 refers to any laws of Congress, special or general, by which public land was disposed of.

(6) That the phrase "where the consideration received therefor is still retained by the government" is satisfied whenever the conditions of the attempted conveyance have been fully complied with, and apply to a homestead claim as well as to a preemption claim.

(7) That the proviso as to "original cash purchasers" is not to be taken as implying that the confirmation only extends to cash purchasers, but as also making further limitations as to some of those in whose behalf the confirmation was proposed.

(8) That it was the evident intent of Congress that in all cases of conflict between a selection in aid of the canal grant and the claims of a settler, the confirmation should depend upon the state of things on the 1st of May, 1888.

(9) That the words "homestead claim," as used in this act, include cases in which the claimant was, on the 1st of May, 1888, in the actual occupation of the land with a view of making a homestead of it, whether he had or had not made a formal application at the local land office.

(10) That the defendant in error Cunningham in No. 49, who was on the 1st of May, 1888, in the occupation of the tract claimed by him, was, within the terms of the confirmatory act, a bona fide claim ant of a homestead, but the defendant in error Finan in No. 50, not being in such occupation at that date, was not. entitled to the benefit of the act.

This was an action commenced by the plaintiff in error (plaintiff below) in the Circuit Court of the United States for the Western District of Michigan on July 17, 1888, to recover the possession of the southwest quarter of section 25, township 44 north, range 36 west. Upon the first trial, a verdict was returned in favor of the plaintiff. In conformity with the opinion of Mr. Justice Jackson, then circuit judge, 44 F. 819, a new trial was granted which, on July 26, 1890, resulted in a verdict under instructions of the court in favor of the defendant, upon which verdict judgment was rendered. To reverse that judgment this writ of error was brought. The plaintiff claimed title by virtue of certain land grants made by Congress to the State of Michigan to aid in the construction of a canal, and a confirmation by an Act of Congress of March 2, 1889. The defendant insisted that no title passed by the canal grants, because the land had theretofore been granted by Congress to aid in the construction of a railroad; that he entered upon the land with a view of preemption, and that his right of preemption was confirmed by the same

Act of Congress of March 2, 1889. The facts in respect to the respective railroad and canal grants are as follows:

On June 3, 1856, Congress passed an act, c. 43, 11 Stat. 20, granting to the State of Wisconsin, to aid in the construction of a railroad "from Fond du Lac on Lake Winnebago northerly to the state line," every alternate section of land, designated by odd numbers, for six sections in width, on each side of the road, and on the same date it passed another act, c. 44, 11 Stat. 21, making a similar grant to the State of Michigan to aid in the construction of several railroads, among them being "railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the two last named places to the Wisconsin state line." This grant was in the ordinary form of a grant in praesenti, the language being, "That there be and hereby is granted to the State of Michigan, to aid," etc. The act also provided, in section 1,

"that the lands hereby granted shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever;"

in section 3,

"that the said lands hereby granted to the said state, shall be subject to the disposal of the legislature thereof, for the purposes aforesaid and no other;"

and in section 4, that

"if any of said roads is not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States."

Apparently Congress contemplated, among other things, the construction of a railroad northerly from Fond du Lac to the line between Wisconsin and the Northern Peninsula of Michigan, and thence in two branches to Marquette and Ontonagon, on the Lake Superior shore. On February 14, 1857, an act passed the Michigan legislature (Laws of 1857, 346, No. 126) accepting this grant and transferring to the Marquette and state Line Railroad Company (hereinafter called the "Marquette Company") and the Ontonagon and state Line Railroad Company (hereinafter called the "Ontonagon Company") two corporations created under the laws of the State of Michigan, so much, respectively, of said grant, as was intended to aid in the construction of the road

between Marquette and the state line and that between Ontonagon and the state line. The language of the act making the transfer is emphatic as to the division between the two companies. It reads:

"In like manner, all the lands, franchises, rights, powers, and privileges which are or may be granted and conferred in pursuance of said act of Congress to aid in the construction of a railroad from Marquette to the Wisconsin state line, be, and the same are hereby, vested fully and completely in the Marquette and state Line Railroad Company; in like manner all the lands, franchises, rights, powers, and privileges, which are or may be granted and conferred in pursuance of said act of Congress to aid in the construction of a railroad from Ontonagon to the Wisconsin state line are hereby vested fully and completely in the Ontonagon and state Line Railroad Company."

By the same act, a board of control was created to supervise the disposition of the granted lands, and in section 11 it was provided that on the failure by the respective companies to construct their lines of road, or any part thereof, in the time and manner required, the

"said board of control shall have the power, and it is hereby made their duty, to declare said lands, so far as they have not been sold in good faith, forfeited to the state, and said board of control are hereby required to confer said lands upon some other competent party, under the general regulations and restrictions of this act."

The grant to the State of Wisconsin was conferred by its legislature upon the Chicago, St. Paul and Fond du Lac Railroad Company, an Illinois and Wisconsin corporation, and on March 27, 1857, that corporation was consolidated with the Marquette Company and the Ontonagon Company, the consolidated company taking the name of the Chicago, St. Paul and Fond du Lac Railroad Company. No question is made as to the validity of this consolidation. Neither the Ontonagon nor the Marquette Company filed any map of location, but the consolidated company (hereinafter called the "Fond du Lac Company") on November 30, 1857, filed in the General Land Office two maps of definite location -- one of the Wisconsin

part of its road and the other of the Michigan portion. On the latter, the roads from Marquette and Ontonagon were located so as to unite some five or six miles above the Wisconsin state line, so that the two maps together showed a single continuous line from Fond du Lac through Wisconsin, and to a point in Michigan five or six miles above the state line, where it separated into two branches, one going to Marquette and the other to Ontonagon. The Fond du Lac Company built no road -- at least none in Michigan. On April 6, 1857, it executed a mortgage covering all its property, including the land grants in Michigan and Wisconsin. Subsequently foreclosure proceedings were had, and by proper conveyances all the title of the Fond du Lac Company passed to the Chicago and Northwestern Railway Company, the last conveyance being executed on July 1, 1859. On December 12, 1861, the Interior Department certified to the State of Michigan certain lands along the lines of these roads in satisfaction of the grants made by the Act of June 3, 1856. These lands were certified in four lists -- one of lands within the six-mile limits of the Ontonagon and state Line Branch (clear). This list included 142,430.23 acres, and among the lands so certified was the tract in controversy in this case.

On March 4, 1861, the Legislature of the State of Michigan, contemplating a change of route from Marquette to the Wisconsin state line, passed an act (Laws of Mich. 1861, p. 123), the preamble and first section of which are as follows:

"Whereas the Marquette and State Line Railroad Company have heretofore consolidated with the Chicago, St. Paul and Fond du Lac Railroad Company, of Wisconsin, and said company having become insolvent, and all its property in Wisconsin transferred to another company, and whereas the most practicable route for a railroad connecting Lake Superior with the system of railroads in Wisconsin should be located on a different route from the one heretofore partially selected, namely from Marquette to the mouth of the Menominee River; therefore,"

"SEC. 1. The people of the State of Michigan enact that for the purpose of placing the aforesaid lands, franchises, rights,

powers and privileges, which are or may be granted in pursuance of said act of Congress, approved June third, eighteen hundred and fifty-six, to aid in the construction of a railroad from Marquette to the Wisconsin state line, near the mouth of the Menominee River, in a position to encourage the early construction of said road, do hereby repeal so much of section two of 'An act to repeal section twenty of an act disposing of certain lands for railroad purposes, approved February fourteenth, eighteen hundred and fifty-seven,' approved February fifteenth, eighteen hundred and fifty-nine, as relates to the extension of the time to complete the first section of twenty miles of the Marquette and state Line Railroad, or any other act amendatory thereto, and do hereby place the same in charge of the board of control, who shall have power, and is hereby made their duty, to confer said lands, franchises, rights, powers and privileges upon some other competent party or company under the general regulation and restrictions of an act disposing of certain grants of land made to the State of Michigan for railroad purposes by an act of Congress approved June third, eighteen hundred and fifty-six, and approved February fourteenth, eighteen hundred and fifty-seven, and all acts amendatory thereto."

Nothing was said in this act about the Ontonagon Company or the road from Ontonagon to the state line. In order to carry into effect this contemplated change of route, the Chicago and Northwestern Railway Company promoted the formation of the Peninsula Railroad Company, a corporation organized under the laws of the State of Michigan, and on April 24, 1862, the Peninsula Company applied to the Michigan board of control to transfer to it the land grant theretofore bestowed by the state upon the Marquette Company, which application was endorsed by the Chicago and Northwestern Railway Company, whereupon the board of control made the following order:

"It is now ordered by this board that all the lands, franchises, rights, powers, and privileges which are or may be granted in pursuance of said Act of Congress approved June 3, 1856, to aid in the construction of a railroad from Marquette to the Wisconsin state line be, and the same are hereby, conferred

upon the said Peninsula Railroad Company under the regulations and restrictions of an Act approved February 14, 1857, entitled 'An act disposing of certain grants of land made to the State of Michigan for railroad purposes by Act of Congress approved June 3, 1856,' and of all acts amendatory thereto."

And at the same time it passed a resolution the material portion of which is as follows:

"Resolved that this Board of Control of Railroad Land Grants for the State of Michigan do hereby recommend and request that Congress do authorize the relocation of the lands granted for the purposes of the line of road from Marquette to the Wisconsin state line so as to conform to the new line that shall be surveyed and adopted by the said Peninsula Railroad Company, terminating at the mouth of the Menominee River, and to the same effect and extent as if such grant had been originally intended to embrace the route so designated and the same had been originally conferred upon said Peninsula Railroad Company."

On July 5, 1862, evidently with a view to carry out the wish of the State of Michigan, as expressed in the Act of March 4, 1861, and the resolution of the board of control, Congress passed a joint resolution, No. 38, 12 Stat. 620, whose first section is in these words:

"Resolved by the Senate and House of Representatives of the United States of American Congress assembled that the words 'Wisconsin state line,' in the first section of an act entitled 'An act making a grant of lands to the State of Michigan, in alternate sections, to aid in the construction of railroads in said state,' approved June third, eighteen hundred and fifty-six, shall, without forfeiture to said state or its assigns of any rights or benefits under said act or exemption from any of the conditions or obligations imposed thereby, be construed to authorize the location of the line of railroad provided for in said act from Marquette, on Lake Superior, to the Wisconsin state line, upon any eligible route, from the Township of Marquette aforesaid to a point on the Wisconsin state line, near the mouth of the Menominee River, and touching at favorable points on Green Bay, with a view of

securing a railroad available for military purposes from Green Bay to the waters of Lake Superior. And the line of railroad as now located in pursuance of said act from Marquette to the Wisconsin state line, according to the records of the General Land Office, is hereby authorized to be changed so as to conform to the route above indicated, which line, when surveyed and the maps and plans thereof filed in the proper office, as required under said Act of June third, eighteen hundred and fifty-six, shall confer the same rights upon and benefits to the State of Michigan and its assigns in said new line as though the same had been originally located under said act."

Sections 4 and 5, so far as they bear upon any question in this case, are as follows:

"SEC. 4. And be it further resolved that the even sections of public lands reserved to the United States by the aforesaid Act of June third, eighteen hundred and fifty-six, along the originally located route of the Marquette and Wisconsin state Line Railroad Company, except where such sections shall fall within six miles of the new line of road so as aforesaid proposed to be located, and along which no railroad has been constructed, shall hereafter be subject to sale at one dollar and twenty-five cents per acre."

"SEC. 5. And be it further resolved that upon the filing in the General Land Office of the lists of said railroad lands, in whole of in part, as now selected and certified in the General Land Office, with the certificate of the Governor of the State of Michigan, under the seal of the state, that said state and its assigns surrender all claims to the lands, as aforesaid, set forth and described in the lists thereof thus certified, and that the same have never been pledged or sold or in anywise encumbered, then the State of Michigan or its assigns shall be entitled to receive a like quantity of land, selected in like manner, upon the new line of road as thus surrendered upon the first line, and to the extent of six sections per mile in the aggregate for every mile of the new line, according to the general provisions of the Act of June third, eighteen hundred and fifty-six. "

Prior to this time, and on April 25, 1862, Congress had authorized a relocation of the line in the State of Wisconsin so as to connect with the proposed line from Marquette southward, contemplated by the Act of March 4, 1861, of the State of Michigan. 12 Stat. 618, No. 30. On March 18, 1863, in the legislation of the State of Michigan, appears an act (Laws of Mich. 1863, p. 186), the first section of which is as follows:

"SEC. 1. The people of the State of Michigan enact that the grant of lands conferred by the board of control upon the Peninsula Railroad Company, under authority of an Act approved March fourth, eighteen hundred and sixty-one, and upon the relocated route authorized for military purposes by resolution of Congress approved July fifth, eighteen hundred and sixty-two, is hereby confirmed unto the said Peninsula Railroad Company, provided it shall construct the railroad referred to according to the requirements of the act and resolution of Congress herein referred to."

On May 3, 1863, the Peninsula Company executed a relinquishment to the United States. This relinquishment, after reciting the forfeiture of the grant to the Marquette Company and its bestowal on the Peninsula Company, and the contemplated change of route, reads:

"Now therefore the said Peninsula Railroad Company, in consideration of the premises and in consideration that the United States will cause or permit the relocation of said land grant so as to conform to said new line under the provisions of said resolution and the acts aforesaid, do hereby release and surrender to the United States of America all right, claim, and interest in and to so much of the lands heretofore located on the original proposed line of the Marquette and State Line Railroad, from Marquette to the Brule River, in township forty-two (42) north, of range thirty-five (35) west, sufficient to cover one hundred and sixty-one thousand one hundred and four and thirty-eight one-hundredths acres (161,104.38) of land, as approved by certificate thereof filed in the General Land Office of the United States on the 12th day of December, 1861, which the said Peninsula Railroad Company may

have acquired under the grant and location aforesaid, and the transfer thereof to said company, as lie between the mouth of the Brule River and the township line, between ranges numbers twenty-eight and twenty-nine west of the meridian of Michigan."

On February 21, 1867, the Legislature of Michigan passed a joint resolution (1 Laws of Mich. 1867, 317) in words following:

"Whereas, by Act of Congress approved June third, eighteen hundred and fifty-six, there was made, among other grants to this state, a grant of land to aid in the construction of a railroad from Marquette to the Wisconsin state line, and whereas, by joint resolution of Congress approved July fifth, eighteen hundred and sixty-two, a change of the route of said road was authorized, and in fact has been made, and whereas, the company have executed a release of said land to the governor, therefore,"

"Resolved by the Senate and House of Representatives of the State of Michigan that the governor be and he is hereby authorized to execute and file the certificate of nonincumbrance and surrender to the United States of the land on the original line of said railroad, required by said joint resolution."

On January 31, 1868, a further release was executed by the Chicago and Northwestern Railway Company, with which the Peninsula Company had theretofore consolidated, which release commences with this recital:

"Whereas by Act of Congress of the United States approved on the third day of June, A.D. 1856, entitled 'A bill making a grant of lands to the State of Michigan in alternate sections to aid in the construction of railroads in said state,' every alternate section of land designated by odd numbers for six sections in width on each side of said roads, was granted to said State of Michigan to aid in the construction of railroads from Marquette to the Wisconsin state line."

And then, after reciting various acts and resolutions of Congress and the State of Michigan hereinbefore referred to, proceeds as follows:

"And whereas lists of said railroad lands granted by said act of 1856 to aid in the construction of said railroad from Marquette to the Wisconsin state line, as the same was originally located, have been filed in the General Land Office:"

"Now therefore, the said Chicago and Northwestern Railway Company, in consideration of the premises, does hereby remise, release, and forever quitclaim unto the said State of Michigan and its assigns forever all the right, title, and interest it now has or has ever had in and to the following pieces or parcels of land situate, lying, and being in the said State of Michigan, and conveyed and certified to said state in accordance with the several acts of Congress hereinbefore specifically referred to -- that is to say: [Here follow the descriptions of lands embraced in three of the lists hereinbefore mentioned, to-wit: first, the lands within the six-miles clear limits of the railroad from Marquette to the Wisconsin state line, containing 112,145.38 acres; second, lists of lands within the six-miles limits of the lines of railroad from Ontonagon to the state line, and from Marquette to the state line, where they intersect and cross each other, containing 41,649.25 acres; third, list of lands within the six-miles limits of the line of railroad from Ontonagon to the Wisconsin state line, and the Marquette and Ontonagon Railroad, where they intersect and cross each other, containing 32,305.93 acres]."

None of the lands within the "clear" limits of the road from Ontonagon to the state line were included in this release. On May 1, 1868, the Governor of the State of Michigan executed to the United States a release of the same lands by an instrument containing substantially the same recitals. These releases seem to have been forwarded by the solicitor of the Chicago and Northwestern Railway Company to the Commissioner of the General Land Office at Washington, who answered on July 13, 1868, acknowledging the receipt and approving the releases as good for the lands described therein, but adding this reference to the lands within the "clear" limits of the Ontonagon road:

"I have to invite your attention to a list of lands, embracing 142,430.23 acres, certified to the state, December 21, 1861, for the branch line to Ontonagon, which

are omitted in the aforesaid release. The state and railroad company are requested to execute a similar release for said lands, which will complete the whole matter for both branches."

Some correspondence followed between the commissioner and the solicitor, and, the list having been furnished by the former to the latter, the Chicago and Northwestern Railroad Company, on June 17, 1870, executed a formal release of these lands to the State of Michigan. This instrument, in its recitals, referred to the various acts and resolutions of the State of Michigan and the United States mentioned in the former releases, and recited that this was also made in consideration thereof. Thereafter, and on August 14, 1870, the Governor of the State of Michigan likewise executed a formal release of the same lands to the United States. On May 29, 1873, the Commissioner of the General Land Office gave notice to the officers of the local land office that these last-named lands were restored to the public domain, but on July 30th, following countermanded by telegraph such order of restoration. The telegram was sent upon the receipt of a letter from the then Governor of the State of Michigan notifying the Land Department that the release executed by the former governor of the lands within the "clear" limits of the Ontonagon and State Line road was unauthorized and void because not within the scope of the resolution passed by the legislature, and also claiming that the lands still belonged to the state. On March 11, 1878, the Commissioner of the General Land Office addressed a letter to the Secretary of the Interior, which was by him referred to Congress, calling attention to the condition of this grant. After stating the facts in the case, the commissioner closes his letter in these words:

"Upon an examination of the case, it appears, in my opinion, that my predecessor erred in demanding deeds of relinquishment of the lands granted for the Ontonagon and State Line Railroad Company from the Chicago and Northwestern Railroad Company and the Governor of Michigan, as there does not appear to have been any action taken either by the board of control or the state legislature to transfer the grant originally made for the Ontonagon and State Line Railroad to

the said Chicago and Northwestern Railroad Company or to authorize the Governor of Michigan to make such a deed, and the title to said lands appears to be in the State of Michigan under the original grant per Act of June 3, 1856, and the subsequent approval made thereunder, as stated in the enclosed letter of Governor Bagley, except such portion thereof as has since been granted to the Marquette and Ontonagon Railroad Company."

"In view of the fact that the railroad from Ontonagon to the Wisconsin state line has not been built, and of the terms of the granting act of 1856, and the confirmatory act of the Michigan Legislature of February 14, 1857, the grant originally made for said road became liable to reversion more than ten years since, and in view of the further fact that neither the state legislature nor the board of control have ever conferred the said grant upon any other party or parties, and that at present there is no party or corporation in esse proposing to build a railroad upon this line, I would respectfully recommend that the attention of Congress be called to the present status of these lands, with a view to such action as may be necessary to restore the same to market."

On September 10, 1880, the Ontonagon and Brule River Railroad Company was organized under the laws of the State of Michigan, and on September 17, 1880, the board of control of the state passed a resolution declaring the grant to the Ontonagon Company forfeited, and bestowing it upon the Ontonagon and Brule River Railroad Company, which grant was accepted by the directors of that company on October 25th. It appears that this company built about twenty miles of road from Ontonagon south, but never completed the road to the state line, nor opposite the land in controversy, nor did it ever receive any of the lands embraced in the grant.

The narration thus far develops the title of the land in controversy, so far as it is determined by the railroad grant legislation and action taken thereunder. Turning now to the canal land grant legislation, the following is its history: on March 3, 1865, Congress passed an act, c. 202, 13 Stat. 519, giving to the State of Michigan authority to locate and construct

a ship canal through the neck of land between Lake Superior and Portage Lake, and granting in aid thereof

"two hundred thousand acres of public lands, to be selected in subdivisions agreeably to the United States survey, by an agent or agents appointed by the governor of said state, subject to the approval of the Secretary of the Interior, from any lands in the Upper Peninsula of said state, subject to private entry, provided that said selections shall be made from alternate and odd-numbered sections of land nearest the location of said canal in said Upper Peninsula not otherwise appropriated and not from lands designated by the United States as 'mineral' before the passage of this act, nor from lands to which the rights of preemption or homestead have attached."

This was a grant in praesenti, the language being, "That there be, and hereby is, granted to the said State of Michigan." The fifth section of the act provided that if the work was not completed within two years, the lands granted should revert to the United States. On March 18, 1865, the Legislature of the State of Michigan accepted this grant, and conferred it upon the Portage Lake and Lake Superior Ship Canal Company. Laws of Mich. 1865, p. 474. On July 3, 1866, Congress passed another act, making an additional grant of 200,000 acres, 14 Stat. 81, the language of which act is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled that there be, and hereby is, granted to the State of Michigan, to aid in the building of a harbor and ship canal at Portage Lake, Keweenaw Point, Lake Superior, in addition to a former grant for that purpose, approved March the third, eighteen hundred and sixty-five, two hundred thousand acres of land in the Upper Peninsula of the State of Michigan, and from land to which the right of homestead or preemption has not attached, provided that one hundred and fifty thousand acres of said lands shall be selected from alternate odd-numbered sections and fifty thousand acres from even-numbered sections of the lands of the United States. Said grant of lands shall inure to the use and benefit of the Portage Lake and Lake Superior

Ship Canal Company in accordance with an act of the legislature Lake and Lake Superior Ship Canal Company, the land granted to the said state, by the act herein referred to, on said company, and provided further that the time allowed for the completion of said work and the right of reversion to the United States, under the said Act of Congress approved March the third, eighteen hundred and sixty-five, be extended three additional years, and provided further that no lands designated by the United States as 'mineral' before the passage of this act shall be included within this grant."

The canal was completed and the final certificate of completion given by the governor on June 25, 1875. Prior thereto, and on July 1, 1865, the canal company executed a mortgage of the lands embraced in the first grant; on July 1, 1868, a second mortgage, covering the lands included within the second grant, and on July 1, 1870, a third mortgage, covering all defendant's property. By foreclosure proceedings, the title to all this property became vested in the plaintiff in error. An agent on the part of the state was duly appointed to make the selection of lands covered by these two grants. Among the lands selected by him was the tract in controversy, which was in 1871, and after the second release executed by the Governor of the State of Michigan, certified by the Land Department to the state in part satisfaction of the canal grant. This tract was from 1880 to 1888 assessed to the plaintiff for state, county, township, and other taxes, and such taxes, amounting in the aggregate to $187.26, paid by it.

On March 12, 1888, the defendant settled upon the tract in controversy, and has ever since continued in possession. On May 25, 1888, he applied to the local land office to enter the lands under the preemption law, stating in his application that he had lived with his family on the land since the 28th of March prior. This application was rejected on the ground that the land had been selected and certified to the State of Michigan in satisfaction of the canal grant. On March 2, 1889, Congress passed an act, c. 414, 25 Stat. 1008, the material portions of which are as follows:

"SEC. 1. That there is hereby forfeited to the United States, and the United States hereby resumes the title thereto, all lands heretofore granted to the State of Michigan by virtue of an act entitled 'An act making a grant of alternate sections of the public lands to the State of Michigan to aid in the construction of certain railroads in said state and for other purposes,' which took effect June 3, 1856, which are opposite to and coterminous with the uncompleted portion of any railroad to aid in the construction of which said lands were granted or applied, and all such lands are hereby declared to be a part of the public domain. . . ."

"SEC. 2. That nothing . . . and provided further that this act shall not be construed to prejudice any right of the Portage Lake Canal Company, or the Ontonagon and Brule River Railroad Company, or any person claiming under them, to apply hereafter to the courts or to Congress for any legal or equitable relief to which they may now be entitled, nor to prejudice any right of forfeiture, as hereby declared, or recovery of the United States in respect of any of the lands claimed by said companies, nor to the prejudice of the right of any person claiming adversely to said companies or their assigns, under the laws of the United States."

"SEC. 3. That in all cases when any of the lands forfeited by the first section of this act, or when any lands relinquished to, or for any cause resumed by, the United States from grants for railroad purposes, heretofore made to the State of Michigan have heretofore been disposed of by the proper officers of the United States or under state selections in Michigan, confirmed by the Secretary of the Interior, under color of the public land laws, where the consideration received therefor is still retained by the government, the right and title of all persons holding or claiming under such disposals shall be, and is hereby, confirmed, provided however that where the original cash purchasers are the present owners this act shall be operative to confirm the title only of such said cash purchasers as the Secretary of the Interior shall be satisfied have purchased without fraud and in the belief that they were thereby obtaining valid title from the United States. That nothing

herein contained shall be construed to confirm any sales or entries of lands, or any tract in any such state selection, upon which there were bona fide preemption or homestead claims on the first day of May, 1888, arising or asserted by actual occupation of the land under color of the laws of the United States, and all such preemption and homestead claims are hereby confirmed."

"SEC. 4. That no lands declared forfeited to the United States by this act shall inure to the benefit of any state or corporation to which lands may have been granted by Congress except as herein otherwise provided; nor shall this act be construed to enlarge the area of land originally covered by any such grant, or to waive or release in any way any right of the United States now existing to have any other lands granted by them, as recited in the first section, forfeited for any failure, past or future, to comply with the conditions of the grant. Nor shall the moiety of the lands granted to any railroad company on account of a main and a branch line appertaining to uncompleted road, and hereby forfeited, within the conflicting limits of the grants for such main and branch lines, when but one of such lines has been completed, inure, by virtue of the forfeiture hereby declared, to the benefit of the completed line."

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